SEPARATE OPINION OF JUDGE CASADEVALL joIned by Judge greve

(Translation)

1. I share the view put forward by the Government in their memorial that there has been a violation of Article 5 §§ 3 and 5 of the Convention, and the applicant should consequently be awarded just satisfaction. However, I must in this instance express my strong reservations about the new approach adopted by the Court in this judgment in paragraph 21 and in the first point of the operative provisions.

2. If it was not going to strike the case out of its list on account of a friendly settlement or for any other reason provided for in Article 37, the Court had a duty, in the exercise of its jurisdiction “concerning the interpretation and application of the Convention”, in the words of Article 32, to rule on the merits and hold that there had been – or had not been – a violation of the provisions in question. In my view, those are the only two options available to the Court under the Convention.

3. It is apparent from Article 41 that an award of just satisfaction is subject to a prior finding that there has been a violation of the Convention or its Protocols. That being so, even allowing the Court a wide discretion to interpret that provision, I am not persuaded that the fact that the Court has accepted the Government’s concession enables it, in itself, to award such satisfaction.

4. Even if the State conceded that there had been a violation of Article 5 §§ 3 and 5, the applicant (the only master of the litigation) maintained his complaint in the absence of a friendly settlement. He was accordingly entitled to a reasoned judgment on the merits (as required by Article 45) and not merely an acceptance of the Government’s concession, and the Court, in my opinion, should have determined the questions before it.

5. Although the precedent dates from 1978 and is admittedly not binding on the new Court, I prefer the point of view expressed in the Ireland v. the United Kingdom judgment (18 January 1978, Series A no. 25) inasmuch as the Court “consider[ed] that the responsibilities assigned to it within the framework of the system under the Convention extend[ed] to pronouncing on the non-contested allegations of [a] violation ...” (p. 62, § 154) and “Accordingly, that part of the present case which concerns the said allegations cannot be said to have become without object; the Court considers that it should rule thereon, notwithstanding the initiatives taken by the respondent State” (p. 62, § 155).

6. Although it can be argued that the Court always retains the right to continue the examination of a case, even if there is a friendly settlement or the applicant withdraws his complaints (Article 37), the opening up of this “new third way”, confined to a mere acceptance of a concession by the respondent State, does not seem to me to be satisfactory in either spirit or letter, in the light of the wording of the Convention.

[1] 1-2. Note by the Registry. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2]

[3] 1. Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.